CROSS v. HALL et al
Filing
53
ORDER DENYING 51 Motion for Leave to Appeal in forma pauperis. If the Plaintiff wishes to proceed with his appeal, he must pay the entire $505 appellate filing fee. Because the Plaintiff has stated that he cannot pay the fee immediately, he must pay using the partial payment plan described under 28 U.S.C. § 1915(b). The Clerk of Court is DIRECTED to send a copy of this Order to the custodian of the prison in which the Plaintiff is incarcerated. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 5/29/2019. (kat)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DARRELL D. CROSS,
Plaintiff,
v.
Warden PHILLIP HALL, et al.,
Defendants.
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CIVIL ACTION NO. 5:18-CV-121 (MTT)
ORDER
Plaintiff Darrell Cross filed an application to appeal in forma pauperis (“IFP”).
Docs. 46; 51. The Plaintiff seeks to appeal from the Court’s judgment dismissing the
action (Doc. 44) following its Order (Doc. 43) adopting the Magistrate Judge’s Report
and Recommendation (Doc. 37) and granting the Defendants’ motion to dismiss (Doc.
34). Doc. 45. Applications to appeal IFP are governed by 28 U.S.C. § 1915 and Fed.
R. App. P. 24. 28 U.S.C. § 1915 provides:
(a)(1) [A]ny court of the United States may authorize the commencement,
prosecution or defense of any suit, action or proceeding, civil or criminal,
or appeal therein, without prepayment of fees or security therefor, by a
person who submits an affidavit that includes a statement of all assets
such prisoner possesses that the person is unable to pay such fees or
give security therefor. Such affidavit shall state the nature of the action,
defense or appeal and affiant’s belief that the person is entitled to redress.
...
(3) An appeal may not be taken in forma pauperis if the trial court certifies
in writing that it is not taken in good faith.
Similarly, Fed. R. App. P. 24(a) provides:
(1) [A] party to a district-court action who desires to appeal in forma
pauperis must file a motion in the district court. The party must attach an
affidavit that:
(A) shows . . . the party’s inability to pay or to give security for fees
and costs;
(B) claims an entitlement to redress; and
(C) states the issues that the party intends to present on appeal.
(2) If the district court denies the motion, it must state its reasons in
writing.
Thus, the Court must make two determinations when faced with an application to
proceed IFP. First, it must determine whether the plaintiff is financially able to pay the
filing fee required for an appeal. Next, the Court must determine if the plaintiff has
satisfied the good faith requirement. “‘[G]ood faith’ . . . must be judged by an objective
standard.” Coppedge v. United States, 369 U.S. 438, 445 (1962). The plaintiff
demonstrates good faith when he seeks review of a non-frivolous issue. Id. An issue
“is frivolous if it is ‘without arguable merit either in law or fact.’” Napier v. Preslicka, 314
F.3d 528, 531 (11th Cir. 2002) (citations omitted). “Arguable means capable of being
convincingly argued.” Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991) (quotation
marks and citations omitted); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (“[A]
case is frivolous . . . when it appears the plaintiff ‘has little or no chance of success.’”)
(citations omitted). “In deciding whether an [in forma pauperis] appeal is frivolous, a
district court determines whether there is ‘a factual and legal basis . . . for the asserted
wrong, however inartfully pleaded.’” Sun, 939 F.2d at 925 (citations omitted).
Because the Plaintiff did not include the required financial information, he did not
sufficiently allege poverty, so the Court ordered that he supplement his motion. Doc.
49. The Plaintiff has now done so. Doc. 51. He states he is unemployed, owns no
property, has no income, and has a balance of $0.00 in his prisoner account. Id. That
affidavit adequately demonstrates he is unable to pay the appellate filing fee of $505.00.
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Next, the Court must determine whether the plaintiff has satisfied the good faith
requirement. Although the Plaintiff has not submitted a statement of the issues he
intends to appeal, as is required under Fed. R. App. P. 24(a)(1)(C), this Court’s
independent review of the issues addressed in the Report and Recommendation (Doc.
37) regarding the motion to dismiss, the Plaintiff’s objection to the Recommendation
(Doc. 41), the Plaintiff’s “Supplement to Motion” (Doc. 50), and the Plaintiff’s other
correspondence (Doc. 52) demonstrates that the Plaintiff’s appeal is frivolous. 1 See
Hyche v. Christensen, 170 F.3d 769, 771 (7th Cir. 1999), overruled on other grounds by
Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000) (explaining that the arguments to be
advanced on appeal are often obvious and decisions regarding good faith can be made
by looking at the “reasoning of the ruling sought to be appealed” instead of requiring a
statement from the plaintiff).
The appeal, therefore, is not brought in good faith. The Plaintiff has raised no
issues with arguable merit. Consequently, the Plaintiff’s application to appeal in forma
pauperis (Doc. 51) is DENIED.
If the Plaintiff wishes to proceed with his appeal, he must pay the entire $505
appellate filing fee. Because the Plaintiff has stated that he cannot pay the fee
immediately, he must pay using the partial payment plan described under 28 U.S.C. §
1
In addition to failing to state a good-faith basis for an appeal, the Plaintiff’s “Legal Letter Covered to 11th
Cir. Court of Appeals Clerks,” Doc. 52, invokes surprisingly violent imagery. Although the handwriting is
difficult, in places, to construe, the Plaintiff appears to warn clerks that “If it make you feel good to dismiss
illegal then one day I could probably file a Biven suit on both of you; which em circuit judges are suppose
to be the decider you clerk aren't supposed to abuse your discretion.” Doc. 52 at 1. He later continues,
“with what’s gone on in a land suppose to be the land of the free / home of the braves / If I was assigned
to your Career I had want to hope have God on my side. So a wood be bandit wouldn’t shoot me or stab
me in my driveway at home.” Id. After signing off “Sincerely Darrell Cross,” he adds an apparent
postscript: “on God been with us / He’s we the muslims with able minds bodies wish to say court you all
are committee . . . suicide open your selves for not given us justice, freedom, equality, independence,
question what you all gone to do when the Lions are turn alise [alive?] en hours of you have court, can’t
excape?” Id. (ellipses in original). Those gratuitous and, frankly, troubling speculations do not advance
any argument he might have that his appeal satisfies the requirements of 28 U.S.C. § 1915.
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1915(b). Pursuant to section 1915(b), the prison account custodian where the Plaintiff
is confined shall cause to be remitted to the Clerk of this Court monthly payments of
20% of the preceding month’s income credited to the Plaintiff’s account (to the extent
the account balance exceeds $10) until the $505 appellate filing fee has been paid in
full. Checks should be made payable to “Clerk, U.S. District Court.” The Clerk of Court
is DIRECTED to send a copy of this Order to the custodian of the prison in which the
Plaintiff is incarcerated.
SO ORDERED, this 29th day of May, 2019.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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